Shackelford v. Hendley's Ex'rs

• Decision Date: 28 April 1819
• Citation: 8 Ky. 496
• Parties: Saml. Shackelford et al. v. Jno. Handley's Ex'ors et al.
• Court: Kentucky Court of Appeals

8 Ky. 496

Saml. Shackelford et al. v. Jno. Handley's Ex'ors et al.

Court of Appeals of Kentucky.

April 28, 1819

ON AN APPEAL FROM A DECREE OF THE HARDIN CIRCUIT COURT.

Littell for appellants.

Wickliffe for appellees.

OPINION

ROWAN JUDGE

On the 25th day of March, 1796, John Handley and Samuel Shackelford contracted by articles of agreement, under their respective signatures and seals, to the effect following:--Handley sold to Shackelford 3,000 acres of land, part of a tract of 10,000 acres, lying on the lower side of Rough creek, opposite to and near the town of Hartford, which he represented in his covenant to have been patented in the name of (William) Fullerton. He represented also that he was entitled to a moiety thereof by conveyance from the said Fullerton. Shackelford was to pay him l 900 for the said 3,000 acres, and was to have the remaining 2,000 acres at l 600, if after seeing the land he liked it, and chose to take it. Shackelford paid him the l 900 for the 3,000 acres, and after seeing the land, chose to take the remaining 2,000 acres. The l 600 for the 2,000 acres was to be paid in seven years, with interest thereon at the rate of five per centum for the six last years, whereby he became entitled to the whole 5,000 acres, for which, on the 13th of February, 1800, Handley made him a conveyance with covenant of general warranty, which deed of conveyance Shackelford, on the next day, acknowledged in writing, under his hand and seal, was a full compliance by Handley with his part of their aforesaid agreement--On the 19th of May, 1800 Shackelford and Ignatius Pigman contracted, by a written article, under their respective signatures and seals, to the effect following:--Shackelford let Pigman have the aforesaid 5,000 acres, the moiety of the 10,000 tract, patented in the name of Fullerton, for which Pigman was to convey to him by deed, with general warranty, 1,000 acres of land on Yellow creek, 3,600 acres on Green river, (without warranty) and to pay him one hundred pounds in cash, and a horse:--Shackelford was, as soon as possible, to put the said Pigman in possession of all the interest he had in the aforesaid 5,000 acres, with all the recourse he had on Handley. Pigman was to pay part of the l 100 down, and the balance in eight months. He was to convey the two aforesaid tracts upon demand. He paid $100 in cash and $100 in a horse. On the back of the above article was made the following endorsement viz:--

" Sir--Please to make the deed to Ignatius Pigman, you was to make to me, and oblige yours,

SAMUEL SHACKELFORD.

Capt John Handley.--May 17th, 1800."

And underneath the above, on the same instrument, was this other endorsement, viz:

" I do hereby agree to convey the within mentioned moiety of 5,000 acres of land to Mr. Ignatius Pigman.

JOHN HANDLEY, (L. S.)

Test--Samuel Work.

Pigman sometime in the next year, discovered that the aforesaid tract of 10,000 acres had never been patented; that the plat and certificate of the survey thereof was still lying in the register's office in the name of Fullerton, and on the 10th of August in that year, communicated that matter in terms of much solicitude to Shackelford, with an earnest request that he should procure the emanation of the patent, as of the date when it should have been issued.

On the 13th of June, 1803, Shackelford addressed a letter to Pigman, which is exhibited by Handley, and made part of his answer, which commences as follows-- " Sir, I here again take the liberty to repeat the subject of the 5,000 acres of land I formerly purchased from John Handley, and since sold to you; Handley agrees, provided I will cancel so far a?? relates to the 2,000 acres, he will take it, & c." In this letter, Shackelford offered to give up to Pigman all the money which was due, and to give him the 1,000 acres on Yellow creek, if he would come into the measure; and from this letter it appeared that Pigman had not conveyed either of the aforesaid tracts to Shackelford, or paid him the balance of the l 100.

In the fall of the year 1803, Pigman became insolvent, and left the state of Kentucky without having cancelled his contract with Shackelford, or conveyed to him either of the two aforesaid tracts of land, or paid him any more money. A patent issued to Fullerton for the aforesaid 10,000 acres on the 8th day of May, 1804; and the 10th day of July, 1804, Handley acknowledged in the clerk's office of Ohio county, before the clerk thereof, a deed of conveyance to Pigman for 4,500 acres, part of the aforesaid 5,000 acres, and on the 20th day of February, 1806, conveyed to Daniel Barry 500 acres thereof, in discharge of a bond executed for that quantity by Pigman to Walls and Joseph, and by them assigned to the said Barry; --Much of the 5,000 acres aforesaid was covered by older patents than Fullerton's. On the deed of conveyance from Handley to Pigman, being executed, Slatler, the son-in-law of Pigman, endorsed upon the article of agreement between him and Shackelford, to the following effect, viz:--

" Received of Capt. John Handley a deed for the within moiety of 5,000 acres, bearing date July the 5th, 1805, and said Shackelford exonerated, except he has failed in paying the taxes on the said land, from the year 1795, in which case I hold him liable.

IGNATIUS PIGMAN,

By his attorney Stephen Slatler."

Handley commenced suit at law against Shackelford in the Lincoln circuit court, upon the article of agreement aforesaid, and obtained a verdict and judgment against him for l 600, the price of the 2,000 acres, with interest thereon from the 26th March, 1797. Shackelford filed his bill enjoining the judgment aforesaid, alleging, in addition to the above facts, that he was prevented by his misrepresentation of the title to the land, at the time he sold to Pigman, from exacting a compliance on the part of Pigman. That the misrepresentation made by him to Pigman was superinduced by the misrepresentation made by Handley, in which he confided, and by which he was influenced to make the contract with him. That Handley had not conveyed effectively the land in question, either to him o?? to Pigman, so as to enable him to exact from Pigman the consideration agreed by him to be paid therefor. That the conveyances to Pigman and to Barry were collusive and fraudulent, made with a knowledge that he had not been paid, and that Pigman had become insolvent and fled the country.

Handley answered the bill; admitted that he had made the representations as to the ttile of the land, but insisted that they were honestly made, under the honest belief that the facts corresponded therewith. That the error was, on his part, innocent and unintentional, and that his covenant of general warranty, and his capacity to comply therewith, met and silenced all complaint on the ground that there were elder adversary titles to the land. He urged also, that the transfer by Shackelford of his interest in the land, and of his recourse against him to Pigman, taken together with the endorsement thereon, and the conveyances to Pigman and Barry, and the acceptance of the conveyance to Pigman by his agent Slatler, had also silenced every complaint on the ground of his innocent misrepresentation of the title, and had removed all obstruction to the effectuation of his judgment against Shackelford.

The cause was removed, by the consent of parties, from the Lincoln to the Mercer circuit court, and afterwards by a judge's order, upon the petition of Handley, to the Hardin circuit court, where, after various amended bills and answers, and a revival by and in the names of Shackelford's representatives, (he having departed this life) it was finally tried, and a decree pronounced, dissolving the injunction and dismissing the bill, with damages and costs; from which complainants prayed this appeal.

They allege that it is erroneous and unjust:--That the misrepresentation of Handley, in the original contract, has produced an afflicting result, which ought to be sustained by him, but which, by the decree, is fastened upon them. On the other hand it is urged to be correct, on the ground that Handley, in whose favor it is, acted fairly, and with good faith, throughout the transaction upon which it is based. That his representation, at the time of, and in the contract, that the land which he sold therein, had been patented in the name of Fullerton, and that he had title thereto, was made under the honest conviction that such were the facts. That he had no intention to deceive, and that as to those facts, he was himself deceived.

It may be, and probably is, true, that Handley was, at the time of the contract, unconscious that the facts of the case did not correspond with...